THE QUEEN v. YEUNG HING YU

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J U D G M E N T

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Bewley, J.

1. This is the judgment of the court.

2. The applicant was convicted, after trial by Deputy Judge Evans and a jury, of possession of arms and ammunition without a licence.

3. He was arrested on 11th October 1989 at home in his room in Taipo. On a dressing table next to his bed was a bunch of seven keys, three of which fitted the doors of the flat.

4. Two other keys on the bunch fitted the padlock and a Yale lock of a but in Shatin, where next morning two revolvers with ammunition, plus a hand grenade, were found in a plastic bag. The applicant's Certificate of Identity and a letter addressed to him at his Taipo flat were also found in this hut.

5. The owner of the hut, Mr Yeung Shun-yin, was in China at the time of the police raid. He was arrested and charged on his return on 23rd October. He was not prosecuted: instead he gave evidence for the Crown.

6. Mr Yeung's evidence was that he purchased the but in 1987. In August 1989, when the applicant began to sleep there, he gave him two spare keys which he had had made. This was the only other set of keys. The applicant slept at the but occasionally and was himself considering buying it.

7. Mr Yeung said the applicant twice mentioned that he intended to store guns in the hut. Furthermore at the end of September the applicant told him that there were guns in a plastic bag, which was visible in the back seat of his car.

8. Mr Yeung said he refused to permit the applicant to store guns in the hut. He asked for the return of his keys but they were not in the applicant's possession at that moment. The applicant slept in the but on the three nights preceding Mr Yeung's visit to China but he did not press him for the return of the keys

9. The judge told the jury that they should regard Mr Yeung as an accomplice and directed them that his evidence was uncorroborated. He pointed out that Mr Yeung had been convicted and sentenced to four years imprisonment ten years earlier for possession of an altered toy gun. He also warned them that he had an obvious motive for giving false evidence.

10. The applicant did not give evidence himself but he called as a witness Mr Cheung Ka-fai, who was a fellow remand prisoner at Lai Chi Kok Reception Centre.

11. Mr Cheung said he knew Mr Yeung, which the latter denied. He said Mr Yeung asked him to look for someone to buy the but and gave him two keys to enable him to show it to prospective purchasers. Mr Yeung also asked him if he knew anyone who wanted to buy guns.

12. Mr Cheung said he met Mr Yeung when he was also on remand and Mr Yeung told him that he thought the applicant had reported him to the police but he was going to put the blame on the applicant because his Certificate of Identity was found in the hut.

13. The defence submitted that there were several sets of keys to the hut., which Mr Yeung was trying to sell, and that Mr Yeung had concocted a false tale implicating the applicant in order to save his own skin.

14. The judge directed the jury that the Crown must prove beyond reasonable doubt that the two keys were in the applicant's possession and that the arms and ammunition were found in the hut. He then explained that, provided they were sure of those facts, a presumption arose that the applicant was in possession of the arms and ammunition, unless he proved the contrary on a balance of probabilities. The judge said the burden on the defendant was to show that it was more likely than not that he did not know about the arms and ammunition in the but at Shatin. He emphasised that this was a lesser burden than that which lay upon the Crown to prove the applicant's possession of the keys and the existence of the articles in the hut. This was a proper direction about which no complaint is made.

15. The judge completed his summing up at 11:35 a.m. and the jury retired. At 2:40 p.m. the court resumed in the absence of the jury and the judge read out a question from the jury in these terms:-

"Members of the jury have difficulty in ensuring ourselves the full understanding of the definition of possession of arms and ammunition without a licence, particularly what the law says.

What we understand from your sum up this morning was if a person possesses the means of access to a premises, for example, the necessary keys, and there is evidence that he/she had been in the premise, and arms/ammunition have been found in the premise, then unless the accused (he/she) can prove beyond reasonable doubts that he/she, has no knowledge of such arms/ammunition, he/she is guilty of the charge.

We present a hypothetical case on the attached sheet, and would like Your Lordship to guide us whether the 'accused' is guilty or not according to the laws of Hong Kong.

The 'accused' is a housewife, married to Mr A. Cheung. They live together in an apartment. Mr A. Cheung brought a gun and some bullets without a licence, and kept the same in the bedside drawer. The 'accused' knows about the gun and bullets as she also uses the drawers to keep her travel documents. She knows her husband intends .to trade the gun and bullets for profit. But she has no intention at all to use or take control of the gun and bullets.

The 'accused' possesses the necessary keys to the apartment., and knows where the guns and bullets are kept.

one date, the police came with a search warrant, found the gun and bullets while the 'accused' was in the premise.

Mr A. Cheung, however, has been away on trip to Japan for the past two weeks, and did not return until a week after the search.

Was the 'accused' guilty of the possession of arms and ammunition without a licence, according to the laws of Hong Kong?"

16. There followed a lengthy discussion between the judge and counsel as to how such a misapprehension of the standard of proof required of the defendant might be remedied. The attitude of defence counsel was rather ambivalent. He expressed grave reservations about the capacity of the jury to absorb directions but he did not follow this - as might have been expected - with an application to discharge the jury. On the contrary, after further discussion, he said:-

"I am really most reluctant, after we have got this far, to make an application to discharge the jury, and nor will I. My reservations can simply remain on the record. If your Lordship, of its own motion, thinks it appropriate to discharge the jury, then that's another matter altogether, but it won't be by virtue of any application that I make that they are discharged, if that is what happened."

Later counsel said:-

"My Lord, I wonder at the desirability of discharging a jury at the end of a trial. All the judicial time and effort that needs to go into this trial has already gone into it. It may be more efficient, I am just thinking out loud really, at this stage to attempt to redirect them and proceed as best one can-and, well, if the matter has to be sorted out on appeal, so be it. But it seems an awful waste of time, money and effort to discharge them at this stage."

17. The judge decided that he should not discharge the jury and recalled them for a redirection. He refused to answer the hypothetical question - we think it might have been helpful had he done so - but he made it clear that mere knowledge of the existence of the arms and ammunition was an insufficient basis for conviction. He repeated his earlier directions as to the burden and standard of proof on both prosecution and defence. He also gave a direction on joint possession. Again no complaint is made about the judge's directions.

18. The sole ground of appeal was that the judge erred in failing to discharge the jury after it had revealed that it had misunderstood the judges direction on the standard of proof cast on the applicant in rebutting a presumption.

19. It was submitted by Mr Oderberg, who represented the applicant on appeal but who did not appear below, that the misunderstanding was so fundamental that it could not be put right by a redirection.

20. We accept that an appellate court has power to review the exercise of a judge's discretion not to discharge a jury. See R. v. McCann and others [1991] 92 CAR 239. In that case the Court of Appeal held that the judge ought to have discharged the jury. It concluded that the impact of media coverage on the fairness of the trial could not be overcome by any direction. The Home Secretary had announced during the closing speeches that it was the government's intention to remove the right to silence. The defendants had not given evidence.

21. We accept that it was in the face of a clear direction from the judge that the standard that the applicant was required to meet in rebutting a presumption was one of proof on a balance of probabilities, that the jury erroneously thought that it was one of proof beyond reasonable doubt.

22. However, it does not follow, nor do we think it in the least likely, that they were incapable of understanding or did not understand the corrective direction which the judge gave them. We should observe that not only was the redirection given to them in isolation so that their attention was focussed on it in the course of their deliberations, but the very phrasing and content of their question to the judge demonstrated an intelligent appreciation of and approach to the issues before them. This was far from being a case of a jury displaying such muddled thinking that it was unsafe to allow the trial to proceed.

23. In our view, the judge exercised his discretion correctly. We therefore granted the application, treated the application as the hearing of the appeal but dismissed the appeal.